COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72804 HELEN A. THOMPSON, : EXECUTRIX OF THE ESTATE OF : JOHN P. THOMPSON : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION KENNETH J. THOMPSON, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OCTOBER 29, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-300449 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: THOMAS C. SCHRADER, ESQ. DAN L. MAKEE, ESQ. TYLER L. MATHEWS, ESQ. McDonald, Hopkins Burke & Haber 2100 Bank One Center 600 Superior Avenue Cleveland, Ohio 44114 For Defendants-Appellees: JOSHUA R. COHEN, ESQ. ELLEN MAGLICIC KRAMER, ESQ. Kohrman Jackson & Krantz One Cleveland Center 1375 East Ninth St., 20th Fl. Cleveland, Ohio 44114 PATRICIA ANN BLACKMON, A.J.: This appeal involves an action by appellant Helen Thompson, Executrix for the estate of her husband, John Thompson, against their son, appellee Kenneth Thompson, and his wife Eleanor Thompson -2- for failure to pay a loan in the amount of $200,000. The jury returned a verdict for appellee. Appellant assigns the following errors for our review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY COMMUNICATING EX PARTE WITH THE JURY ON A SUBSTANTIVE MATTER OF LAW FOLLOWING THE JURY'S REQUEST FOR ADDITIONAL INSTRUCTIONS DURING THE COURSE OF DELIBERATIONS. II. THE TRIAL COURT'S FAILURE TO SUPPLY A COURT REPORTER DURING A CRITICAL PROCEEDING OF THE TRIAL, DESPITE THE REQUEST OF COUNSEL, CONSTITUTES REVERSIBLE ERROR PURSUANT TO R.C. 2301.20. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY QUALIFYING THE CLEAR AND CONVINCING BURDEN OF PROOF JURY INSTRUCTION WITH AN INSTRUCTION THAT A CONVEYANCE OF MONEY IS PRESUMED TO BE A GIFT. IV. THE JUDGMENT OF THE COURT IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE APPELLEES DID NOT PROVE THE EXISTENCE OF A GIFT BY CLEAR AND CONVINCING EVIDENCE. V. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF'S MOTION FOR JNOV OR, IN THE ALTERNATIVE, FOR A NEW TRIAL. Having reviewed the record and the legal arguments of the parties, we reverse the decision in this case and remand it to the trial court for proceedings consistent with this opinion. On December 12, 1995, John Thompson instituted this action. On July 30, 1997, he died, and pursuant to App.R. 12, appellant was allowed to maintain the herein suit for her husband. In 1990, John Thompson gave $200,000 to his son, appellee. Appellee received four checks for $50,000 each. The checks were written on April 3, 1990, April 29, 1990, June 11, 1990, and June -3- 18, 1990. Three of the checks were made out to appellee and one was ade out to appellee and his wife, appellee Eleanor Thompson. Each check contained the notation Loan on the memo line. Appellee cashed the checks and used the money for a down payment on a house estlake. On December 16, 1995, John Thompson sent thmin W following demand letter to appellee: Dear Ken, As you are aware you borrowed $200,000 from your mother & me. You have never made any payments on this borrowing. Consider this letter as our formal demand for repayment. Unless payment is made no later than 12/19/95, we will have no choice but to bring action against you and Ellie. Dad. Appellee failed to repay the money. On December 20, 1995, John Thompson filed a complaint against appellees Kenneth and Eleanor Thompson, for repayment of the $200,000 loan.1 Appellee Kenneth Thompson admitted receiving the money, but denied the rest of the allegations in John Thompson's complaint. John Thompson moved for summary judgment on the complaint. He alleged that the $200,000 was a loan, which was to be paid on demand. He also argued that appellees Kenneth and Eleanor Thompson signed a promissory note for the loan but conceded that the note could not be located. Appellee Kenneth Thompson responded that the money was a gift and that the memo lines on the checks read Loan 1 On February 15, 1996, the case was consolidated with Kenneth Thompson, Trustee et al. v. Thogus Products Co., et al. (CV-299977) In that case, Kenneth Thompson alleged, inter alia, that he was wrongfully discharged from his employment at Thogus Products, a company owned by his father, John Thompson. -4- only because John Thompson was attempting to avoid paying a gift tax on the money. Appellee also claimed that John Thompson asked him to repay the money only because he was angry about a wrongful discharge action filed by appellee against Thogus Products, a company owned by John Thompson. The motion for summary judgment was denied and the case proceeded to trial. Both John Thompson and his wife testified at trial that the money was a loan. Additionally, John Thompson's financial advisor, Robert Dorfmyer, testified that John Thompson told him of his intent to loan his children money to assist them in buying homes. Dorfmyer advised John Thompson to document the loan with promissory notes. Dorfmyer drafted a promissory note which provided that the loan was to be repaid on demand and that it was subject to interest at the rate of 9 per cent per annum. He added that the money was always intended to be a loan and was absolutely not a scheme to avoid taxes. Dale Hlavin testified that he and his wife, Kathleen, signed a promissory note for the $200,000 and have repaid up to $130,000 of the loan. He also testified that he saw appellee Kenneth Thompson sign a similar note in his presence. According to Hlavin, Kenneth Thompson took the promissory note home for his wife to sign. Appellees both testified that they could not recall signing a promissory note, but didn't deny signing one. The jury found in favor of appellees Kenneth and Eleanor Thompson. John Thompson's motion for judgment notwithstanding the verdict was denied. This appeal followed. -5- In this appeal, we believe that the jury lost its way and created such a manifest miscarriage of justice that the judgment should be reversed and a new trial ordered. Consequently, we conclude the appellant's fourth assigned error is well taken and the remaining errors are moot. The law in Ohio is clear that when the reviewing court disagrees with the factfinder's resolution of the conflicting evidence, the reviewing court may determine that justice requires a reversal and a new trial. State v. Thompkins (1997), 78 Ohio St.3d 380. This court is mindful that this discretionary power should be exercised only in exceptional cases and that the weighing of evidence and determining of credibility are the factfinder's responsibilities. Lesinski v. Henderson (1996), 112 Ohio App.3d 70. Equally, this court is aware that judgments supported by some competent, credible evidence going to all of the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. However, manifest weight indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict if on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Thompkins at 387. In this case, the greater amount of evidence does not sustain the jury's verdict. The evidence showed the father delivered to -6- each of his children checks totalling $200,000. On the checks the word Loan was inscribed on the memo line. His son, daughter and respective spouses all signed promissory notes. The daughter and her husband believed the $200,000 to be a loan. The daughter repaid $130,000 of the money she received. The son did not. The father demanded repayment from the son, and when he did not receive the payment, he sued. The financial advisor testified that it was a loan and he prepared the promissory notes. Besides, all of the father's actions evidenced his transaction with his son was a loan. Consequently, we believe the jury lost its way and a manifest injustice occurred. Accordingly, assigned error four is well taken. The remaining errors are moot. The matter is remanded for a new trial. Judgment reversed and remanded. -7- This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellees her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. TIMOTHY E. MCMONAGLE, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .